Town Attorney’s response to Griffin’s complaint that as an independent contractor Jones should have his own emails etc.

To:      Town Council

From: Meagan L. Logan

Re:       February 17, 2020 Citizen Complaint against Tommie Jones

Date:    March 3, 2020

On February 17, 2020, citizen Joe Griffin submitted a Citizen’s Complaint against Interim Town Manager Tommie Jones alleging that Mr. Jones “is violating the law” when he creates the appearance of authority using his email address, phone number and office space to signify and apparent authority and an actual authority to bind the Town to contract provisions,” when he is not an authority of the town as independent contractor.

Although it is not clear what “law”, Mr. Griffin is referring to, Mr. Griffin’s complaints regarding Mr. Jones’s status as a consultant or independent contractor appear to conflate principles of employment law with tort principles.  The status of an independent contractor, as distinguished from that of an employee, consists of a contractual relationship by one with another to perform something for him, but the one so engaged is not controlled or subjected to control of the other in the performance of the engagement, but only as to the result.  Collins v. Federated Mut. Implement & Hardware Ins. Co., 247 So 2d 461, 463 (Fla. 4th DCA 1971).   Conversely, a principal in an employee-employer relationship retains the right to control the conduct of the employee in regard to the engagement entrusted to him. Id.  The recognized distinction between an employee and an independent contractor is determined by whether the person is subject to or whether he is free from control with regard to the details of the engagements. Id.  (Agreed and we believe all details are controlled by our Mayor).

See also, Edwards v. Caulfield 560 So. 2d 364, 371-72 (Fla. 1st DCA 1990) (concluding that injured worker was an independent contractor and not an employee where worker had an “employment agreement” that allowed either party to terminate the relationship at any time, worker received no fringe benefits associated with an employer/employee relationship and had “complete control over the details of her work.”)  In the present case, the Town of White Springs was clear in its intent that it desired a temporary arrangement with Mr. Jones without the formalities of an employment relationship, including a lengthy term of employment with the inability to terminate the relationship without cause, receipt and payment of fringe benefits and the continued expectation of employment.  (Understood but Jones is still told what to do and is not on his own schedule…and he was told what the Town would pay him and he does not bill the town for his hours but was told what his hours of operation would be. He’s such a good consultant he did not realize he needed to retain insurance on the Town’s employees. )

However, just because one is not deemed an employee does not mean the principal or entity utilizing a consultant or independent contractor will not be responsible for the actions of that individual under tort or agency principles.  In contrast, under tort principles an entity utilizing an individual who is a consultant or independent contractor may be held responsible for that individual’s tortuous actions (regardless of what that individual is called) even though the individual is not an employee.  Although it is the general rule that one who hires an independent contractor is not liable for injuries caused by an independent contractor’s negligence, there are exceptions recognized in the law of tort:  Pope v. Winter Park Healthcare Group, Ltd. 939 So 2d 185 (Fla. 5th DCA 2006). ( I again agree and have stated on the blog that if the Town does not fully look at a background of one who is an independent contractor consultant and what the consultant does is not “negligence” but intended harm, the Town would be liable for their lack of a background check.)

Florida courts have previously recognized a ten-factor test for determining whether there is an employer or independent contractor relationship for purpose of tort liablity.  Keith v News & Sun Sentinel Co., 667 So. 2d 167, 170 n.1 (Fla 1995) (citing Restatement  (Second of Agency, (1958)).   These factors include

(a) the extent of control which, by the agreement, the master may exercise over the details of the work

(b) whether or not the one employed is engaged in a distinct occupation or business

(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(d) the skill required in the particular occupation;

(e) whether the employee or the workman supplies the instrumentalities, tools and the place of work for the person doing the work;

(f) the length of time for which the person is employed;

(g) the method of payment, whether by the time or by the job

(h) whether or not the work is part of the regular business of the employer

(i) whether or not the parties believe they are creating the relation of master and servant; and

(j) whether the principal is or is not in business. Id.

 

In determining whether the entity is or will be responsible for the individual’s actions, courts will almost always look at how the outside world viewed the individual and whether the individual was cloaked with sufficient indicia of authority for the entity so that a reasonable person would believe the individual was acting as an employee or at the direction of the entity.  (In this case the outside world would definitely construe Tommie Jones to be an employee.  In fact a Town Manager is the business of the Town; And he is controlled by the Mayor and the council as to details most specific; he is not engaged in a distinct occupation or business and we have never known what he is a consultant of; he has not the skill to be a town manager because there is a lack of experience that only Mayor Miller provides him; )

 

While I do not believe the above factors as applied to Mr. Jones’ relationship with the Town of White Springs would necessarily result in a finding that Mr. Jones is an employee for agency purposes (I do not believe findings for factors a,d,f,g and i suggest an employment relationship), the Town’s decision to allow Mr. Jones to utilize a  Town of White Springs email address to conduct work on its behalf is only one factor (the employer supplying the instrumentalities and tools for the purpose of doing the work) of ten.   (Obviously Meagan Logan is unfamiliar with what has been done behind the scenes and I find that there are eight of ten)  The only two which do not apply is the fact that he has a distinct business…what it is we really do not know and the Council has no idea that they are creating a master servant relationship because they refuse to know the truth or accept it).

Likewise, in order to determine the existence of apparent agency, it must be determined that 1) There was a representation by the principal;  2) the injured party relied on that representation; and 3) the injured party changed position in reliance upon the representation and suffered detriment.  Amstar Ins. Co. v Cadet, 862 So 2d 736, 742 (Fla. 5th DCA 2003).   A principal may be liable for the acts of his or her apparent agent that are committed within the scope of the apparent agency.  I__ (citing Life Ins. Co of N. Am v. Del Aguila  417 So 2d 651 (Fla 1981)) Id  (This is nice but White Springs will still be the one sued because even though an employment agreement had not been reached but a contract of duration only, neither Countyline Design and Business Service (a corporation) nor Tommie Jerome Jones (an individual) carry insurance for its/his operations whatever those operations may be aside from being an interim Town Manager.  Let Jones be sued and we will see how Mr. Jones says he is part of Agency) 

IT APPEARS THAT THE TOWN CHOSE TO MAKE MR. JONES A CONSULTANT FOR EMPLOYMENT PURPOSES FOR VARIOUS REASONS, ALL OF WHICH WERE BENEFICIAL TO THE TOWN, INCLUDING NON-PAYMENT OF EMPLOYMENT BENEFITS SUCH AS RETIREMENT, HEALTH INSURANCE, ETC. AS WELL AS THE BENEFIT OF HAVING A SHORT TERM AGREEMENT DURING WHICH IT COULD EVALUATE ITS NEEDS AND TERMINATE THE AGREEMENT QUICKLY, IF NECESSARY, WITH NO FURTHER OBLIGATIONS TO MR. JONES.  AT THE TIME, IT MADE MR. JONES A CONSULTANT, IT DOES NOT APPEAR THE TOWN WAS EVER ATTEMPTING TO DISAVOW HIS AGENCY STATUS OR RESPONSIBILITY FOR HIM AS AN AGENT OF THE TOWN OF WHITE SPRINGS.  RATHER, THE TOWN’S SOLE CONSIDERATION IN MAKING MR. JONES A CONSULTANT FOR EMPLOYMENT PURPOSES (AND NOT TORT OR AGENCY PURPOSES) WAS THE FREEDOM ASSOCIATED WITH THE ABILITY TO QUICKLY AND CONCRETELY TERMINATE THE RELATIONSHIP WITH NO STRINGS ATTACHED AND NO RESULTING CLAIMS BY EITHER PARTY.  AN INDIVIDUAL CAN BE AN INDEPENDENT CONTRACTOR FOR EMPLOYMENT PURPOSES AND YET STILL THE RESPONSIBILITY OF AN ENTITY UNDER TORT OR AGENCY PRINCIPLES.

 

Mr. Jones HAS NOT VIOLATED ANY LAW BY USING AN EMAIL ADDRESS ASSOCIATED WITH THE TOWN.  RATHER, HIS USE OF A TOWN EMAIL ADDRESS IS ONE FACTOR TO BE CONSIDERED AMONG MANY IN DETERMINING IF HE WILL BE FOUND TO BE AN EMPLOYEE OR AGENT OF THE TOWN.  GIVEN THAT THE TOWN HAS AUTHORIZED THIS USE AND HAS NEVER DISAVOWED MR. JONES’ AUTHORITY TO ACT ON ITS BEHALF EVEN IF DOING SO MAY RESULT IN HIM BEING FOUND TO BE AN AGENT OF THE TOWN.  MR. GRIFFIN’S COMPLAINT IS WITHOUT MERIT AND SHOULD BE DISMISSED.

 

 

It is amazing how “Law 101” has been cited relative to “Agency” and “determination of an independent contractor” yet Ms. Logan has wiggle room and states the Town has not disavowed Mr. Jones’ independent contractor status so that she does not have an error or omission, which we all know Tommie is an employee with an independent contractor status and it  is a blatant fabrication Ms. Logan would realize if she had to work in Town Hall for a week.  Yet in the one paragraph, she “believes” that she has there are no findings that Mr. Jones was an employee for factors, a, d, f, g and I which suggest an employment relationship.  She definitely protects her clients but we all know Mr. Jones can only follow orders. Wait until White Springs is fined for Jones not paying his taxes to the IRS and the IRS knowing that he definitely fits an “employee” status and the Town is definitely “Agency”.

 

 

Karin for the blog

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